WHAT 


TITLE  AND  INTEREST 


HAS  THE 


COMMON  WE  ALTII 


IN  THE 


Southern  Vermont  Railroad? 


\  X  o  la  <X  "A  d 


fS  «}  \ 

i  yr \  rtu  1  ro  cl 


Digitized  by  the  Internet  Archive 
in  2019  with  funding  from 
University  of  Illinois  Urbana-Champaign  Alternates 


https://archive.org/details/whattitleinteresOOalle 


T 1  Sw 


ii 

% 


* 


WHAT  TITLE  AND  INTEREST  HAS  THE  COM- 

r 

MONWEALTH  IN  THE  SOUTHERN  VERMONT 
RAILROAD  ? 


It  having  been  urged  before  the  Hoosac  Tunnel  Committee 
that  the  Commonwealth  has  a  perfect  title  to  the  Southern 
Vermont  Railroad,  that  the  lease  of  that  railroad  to  the  Troy 
and  Boston  Railroad  Company  was  not  made  till  after  it  was 
mortgaged  to  the  Commonwealth,  and  that  the  lease  was 
merely  a  pretended  lease  which  the  Commonwealth  may  now 
disregard,  the  following  statement  is  now  made,  showing 
in  detail  what  title  and  interest  the  Commonwealth  has  in 
the  Southern  Vermont  Railroad. 

The  first  step  taken  by  the  Commonwealth  towards  acquir¬ 
ing  any  such  interest  was  the  Statute  of  1660,  c.  202,  §  8, 
which  contains  the  following  provisions:  "The  Troy  and 
"  Greenfield  Railroad  Company  is  hereby  authorized  and 
•  "  required  to  purchase  the  entire  road,  franchise,  stock,  bonds 
"and  other  property  of  the  Southern  Vermont  Railroad  Com- 
"  pany,  together  with  the  income ,  benefits  and  reversion  of  its 
"  lease  to  the  Troy  and  Boston  Railroad  Company ,  and  subject 
4^  "to  its  provisions,  for  the  sum  of  two  hundred  thousand 
a,  "  dollars  ;  and  for  the  purpose  of  enabling  them  to  make  such 
"purchase,  and  transfer  the  same  to  the  Commonwealth  as 
—  "additional  security  to  the  Commonwealth  for  its  whole  loan, 
<u  "a  further  issue  and  loan  of  State  scrip  in  Federal  currency, 
"  of  the  description  specified  in  Chapter  226  of  the  Acts  of 
"the  year  1854,  is  hereby  authorized  to  be  made  to  the 
"  amount  of  two  hundred  thousand  dollars,  deliverable  as 
"  follows,  namety  : 

"  Whenever  all  the  capital  stock  of  the  Southern  Vermont 


V 


4 


"Railroad,  excepting  not  exceeding  twenty  shares  of  one 
"hundred  dollars  each,  and  one  hundred  thousand  dollars  of 
"its  mortgage  bonds  with  coupons  attached,  the  whole 
"amount  being  one  hundred  and  fifty  thousand  dollars,  pay- 
"able  in  twenty  years  from  the  date  of  issue,  with  six  per 
"cent  interest,  payable  semiannually  at  the  Bank  of  Com- 
"  merce,  in  the  city  of  New  York,  and  the  aforesaid  lease  of 
"  said  company  to  the  Troy  and  Boston  Railroad  Company , 
"  together  with  the  rent  reserved  therein  of  twelve  thousand 
"  dollars  per  annum ,  payable  semiannually ,  shall  have  been 
"  transferred  to  the  treasurer  of  the  Commonwealth ,  for  the 
"future  security  of  the  Commonwealth  for  its  whole  loan  of 
"  credit  to  the  Troy  and  Greenfield  Railroad  Company,  in  such 
"  manner  as  the  attorney-general  shall  prescribe,  and  to  the 
"satisfaction  of  the  governor  and  council,  the  State  treasurer 
"shall  deliver  one  hundred  and  twenty-live  thousand  dollars 
"of  said  scrip  to  the  treasurer  of  the  Troy  and  Greenfield 
"  Railroad  Company.”  [There  were  further  provisions  for 
the  delivery  of  the  balance  of  the  scrip  to  the  treasurer  of 
the  Troy  and  Greenfield  Railroad  Company.] 

"  The  semiannual  payment  of  the  coupons,  with  the  balance 
"  of  the  income  from  the  lease  of  the  Southern  Vermont 
"  Railroad,  shall  be  collected  by  or  paid  to  the  State 
"  Treasurer^ 

In  pursuance  of  this  legislation,  the  governor  and  coun¬ 
cil,  on  the  3d  of  May,  1860,  accepted  the  mortgage  made 
by  the  Troy  and  Greenfield  Railroad  Company  to  the  Com¬ 
monwealth,  of  the  franchise  and  property  of  the  Southern 
Vermont  Railway  Company,  and  of  the  lease  of  the  same  to 
the  Troy  and  Boston  Railroad  Company.  The  report  of  a 
Committee  of  the  Executive  Council  on  the  conveyances  of 
the  Southern  Vermont  Railroad  contains  the  following :  — 
[See  Senate  Doc.  of  1874,  No.  150,  p.  113,  for  this  Re¬ 
port  in  full.] 


5 


"  Executive  Department, 

"Boston,  May  3,  1860. 

"The  Committee  of  the  Council  to  whom  was  referred 
\  "(under  the  8th  section  of  Chapter  202  of  the  laws  of  1860) 

"  the  mortgage  of  the  Commonwealth  by  the  Troy  and 
"  Greenfield  Railroad  Company,  of  the  franchise  and  property 
•  "of  the  Southern  Vermont  Railroad  Company,  and  the  lease 

"  of  the  same  to  the  Troy  and  Boston  Bailroad  Company , 
"together  with  the  accompanying  papers,  as  specified  in  a 
"  communication  to  His  Excellency  the  Governor  and  the 
"  Honorable  Council,  dated  April  26,  1860,  and  signed  by 
"Wendell  T.  Davis  and  H.  Haupt,  a  committee  appointed 
"  by  the  Troy  and  Greenfield  Railroad  Company  for  that  pur- 
"  pose,  —  which  papers  accompany  this  report,  and  are 
"marked  A,  B,  C,  D,  E,  F,  G,  H,  I,  J,  K,  L,  M,  and  N,~ 
"have  given  the  subject  a  careful  consideration,  and  report: 
"That  said  mortgage  and  accompanying  papers  are  correct, 
"  satisfactory,  and  according  to  the  provisions  of  said  Chap- 
"ter  202,  Section  8,  of  the  laws  of  1860.” 

[The  Report  then  states  a  compliance  with  the  other  pro¬ 
visions  of  that  statute.] 

"The  committee  also  report  that  said  papers  are  indorsed 
"  by  the  attorney-general  of  the  Commonwealth  as  correct 
"  and  according  to  the  statute  provisions.” 

"  Elipiialet  Trask, 

"  J.  M.  Churchill, 

"  Hugh  W.  Greene, 

" Committee .” 


* 


"  The  foregoing 

O  O 

accepted. 


"  Council  Chamber,  May  3,  1860. 
Report  is  by  the  governor  and  council 

"Oliver  Warner, 

"  Secretary  of  the  Commonwealth .  ” 


6 


The  mortgage  of  the  Southern  Vermont  Railroad,  and  a 
copy  of  the  lease  of  the  same  to  the  Troy  and  Boston  Rail¬ 
road  Company,  together  with  the  accompanying  papers, 
were  in  fact  transmitted  by  the  Troy  and  Greenfield  Rail¬ 
road  Company  to  the  executive  of  the  Commonwealth  on 
the  twenty-eighth  of  April,  1860,  as  appears  by  a  letter  of 
Gen.  Haupt  to  Gov.  Banks,  which  is  on  file  among  the 
papers  in  the  office  of  the  treasurer  of  the  Commonwealth. 
That  letter  contains  the  following  :  — 

"  April  28,  1860. 

"  To  His  Excellency  N.  P.  Banks  : 

" Dear  Sir , — Accompanying  this  note  you  will  find  an 
"  official  communication  containing  a  list  of  papers  and  docu- 
"  ments  pertaining  to  the  purchase  and  transfer  to  the  State 
"  of  the  Southern  Vermont  Railroad  Company.  It  has  re- 
"  quired  much  effort  to  conclude  all  the  arrangements  in  time 
"  to  lay  the  matter  before  council  at  their  meeting  on  the 
"30th  inst.,  but  I  have  so  far  succeeded  as  to  be  able  to  pre- 
"  sent  all  the  papers  considered  necessary,  except  the  lease, 
"of  which  I  enclose  a  copy,  and  will  have  the  original  by 
"about  Tuesday  of  next  week.  The  delay  has  been  caused 
"  by  the  discovery  of  a  difference  in  the  date  of  the  two 
"parts,  which  the  inclosed  copy  of  a  supplement  executed  on 
"  last  Friday  ( yesterday )  by  the  Troy  and  Boston  Railroad 
"  Company  will  fully  explain .” 

The  official  communication  referred  to  in  the  above  letter, 
and  also  in  the  report  of  the  Committee  of  the  Council,  was 
dated  April  26,  1860,  though  not  actually  sent  till  April  28, 
and  is  on  file  in  the  office  of  the  treasurer  of  the  Common¬ 
wealth.  It  is  addressed  to  "His  Excellency  N.  P.  Banks, 
Governor,  and  to  the  Honorable  Council  of  the  State  of 
Massachusetts,”  and  is  signed  by  "Wendell  T.  Davis  and  H. 
Haupt,  Committee  of  the  Troy  and  Greenfield  Railroad  Com¬ 
pany.”  In  it,  the  committee  submit  the  papers  marked  from 
"  A  ”  to  "  N,”  and  among  them  were  the  following  :  — 


7 


"E.  Affidavit  of  officers  and  directors  of  the  Southern 
"Vermont  Railroad  Company,  showing  that  the  said  road 
"was  opened  for  business  on  March  1,  1859,  and  that  since 
"  April  1,  1859,  the  trains  have  run  without  interruption, 
"  and  that  the  Troy  and  Boston  Railroad  Company  have 
"  promptly  made  the  payments  required  by  their  lease  of  said 
"  road.” 

F.  Deed  from  Southern  Vermont  Railroad  Company  to 
the  Troy  and  Greenfield  Railroad  Company. 

G.  Mortgage  from  the  Troy  and  Greenfield  Railroad 
Company  of  the  Southern  Vermont  Railroad  to  the  State  of 
Massachusetts. 

"  H.  Lease  of  the  Southern  Vermont  Railroad  by  Troy 
" and  Boston  Railroad  Company ,  duly  executed  and  at- 
"  tached  to  mortgage .” 

L.  A  certificate  of  incumbrances  on  the  Southern  Ver¬ 
mont  Railroad. 

The  above  affidavit,  marked  "  E,”  is  on  file  in  the  office  of 
the  treasurer  of  the  Commonwealth,  and  is  as  follows  :  — 

"The  undersigned,  officers  and  directors  of  the  Southern 
"Vermont  Railroad  Company,  do  hereby  certify  that  the 
"  Southern  Vermont  Railroad  was  opened  for  business  on 
"the  first  day  of  March,  A.  D.  1859,  and  from  the  first  day 
'"  of  April  next  following  the  Troy  and  Boston  Railroad 
"  Company  have  operated  the  said  road  without  interruption , 
"  and  have  regidarly  and  promptly  made  the  payments  re- 
"  quired  by  their  lease  of  the  road ,  dated  the  twenty-first  day 
"  of  November,  A.  I).  1856. 

"R.  Carpenter,  Jr.,  President . 

"H.  Haupt,  Treasurer . 

"Orrin  Bates,  Clerk. 

"John  M.  Potter. 

"  Henry  Cartwright.” 

"Subscribed  and  sworn  to  before  me,  this  twenty-first  day 
of  April,  A.  D.  1860. 

"A.  B.  Gardner,  Justice  of  the  Peace.” 


4 


8 


The  paper  marked  "  L  ”  was  a  certificate  of  incumbrances 
on  the  Southern  Vermont  Railroad,  and  it  was  subscribed 
and  sworn  to  April  27,  1860,  by  A.  B.  Garduer,  and  con¬ 
tains  the  following:  — 

"  A  lease  of  said  railroad  to  the  Troy  and  Boston  Railroad 
"  Company ,  during  the  continuance  of  its  charter .” 

The  attorney-general  of  the  Commonwealth  made  the  fol¬ 
lowing  certificate  of  his  examination  of  the  above  papers 
marked  from  "  A”  to  "  N  ”  :  — 

"  Commonwealth  of  Massachusetts. 

"May  2,  1860. 

"I  have  examined  the  papers  specified  in  the  above  sched- 
"  ule,  and  find  them  correct  and  according  to  the  statute  pro- 
"  vision. 

"  Stephen  H.  Phillips, 

"  Attorney -  General  ” 

Among  these  papers,  those  which  constitute  the  actual 
record  title  of  the  Commonwealth,  marked  "F,”  "G”  and 
"II,”  are  all  fastened  together  as  one  instrument,  and  contain 
mutual  references  to  each  other,  as  hereinafter  shown,  and 
bear  a  special  certificate  of  the  attorney-general,  as  fol¬ 
lows  :• 


"Commonwealth  of  Massachusetts. 

"May  2,  1860. 

"The  accompanying  transfer  is  satisfactory  in  form  and  in 
"compliance  with  the  provisions  of  the  Statute  of  1860, 
"Chap.  202,  Sect.  8. 

"  Stephen  II.  Phillips, 

'  Attorney -  General .” 

* 

The  lease  to  the  Troy  and  Boston  Railroad  Company  teas 
in  express  terms  referred  to  in  the  deed  of  the  Southern  Ver¬ 
mont  Railroad  to  the  Troy  and  Greenfield  Railroad  Com- 


9 


pany,  and  in  the  mortgage  by  the  latter  company  to  the  Com¬ 
monwealth,  as  annexed  thereto ;  and  it  ivas  in  fact  so  annexed 
and  made  a  part  thereof. 

Those  papers  thus  fastened  together  as  one  instrument  are, 
in  detail,  as  follows  :  — 

1.  Deed  by  the  Southern  Vermont  Railroad  Company  to 
the  Troy  and  Greenfield  Railroad  Company,  dated  April  21, 
1860. 

This  deed  recites  that  the  St.  of  1860  "  authorized  and 
"  required  the  Troy  and  Greenfield  Railroad  Company  to 
"purchase  the  entire  road,  franchise,  bonds  and  other  prop¬ 
erty  of  the  Southern  Vermont  Railroad  Company,  together 
"  with  the  income ,  benefits  and  reversion  of  its  lease  to  the  Troy 
"  and  Boston  Railroad  Company ,”  and  after  certain  other 
recitals  proceeds  to  grant  to  the  Troy  and  Greenfield  Rail¬ 
road  Company  its  railroad  and  property,  " including  the 
"  lease  made  by  said  grantor  corporation  to  the  Troy  and 
Boston  Railroad  Company ,  dated  the  twenty -first  day  of 
November ,  in  the  year  one  thousand  eight  hundred  and  fifty- 
six ,  one  part  of  which ,  lietd  by  the  lessor  corporation ,  is 
hereto  annexed,  and  all  the  income,  benefits  and  reversion 
thereof.” 

2.  Annexed  to  the  foregoing  is  one  part  of  the  original 
lease  of  the  Southern  Vermont  Railroad  to  the  Troy  and 
Boston  Railroad. Company,  namely,  the  part  which  was  exe¬ 
cuted  by  the  Troy  and  Boston  Railroad  Company,  agreeing 
to  pay  $12,000  per  year  as  rent.  This  instrument  is  dated 
Nov.  21,  1856,  and  bears  the  certificate  of  S.  H.  Blackmer, 
County  Clerk  of  Bennington  County,  Vermont,  that  it  was 
recorded  March  10,  1858. 

By  its  terms,  "  the  said  party  of  the  first  part  doth  hereby 
"  lease  and  let  unto  the  party  of  the  second  part,  for  and 
"during  the  term  of  the  continuance  of  the  charter  of  said 
"  Southern  Vermont  Railroad  Corporation,  and  for  and  dur- 
"  ing  the  term  or  terms  of  any  renewal  or  renewals  of  said 
"  charter  that  may  hereafter  be  obtained,  their  railroad,  when 
"  finished,  extending  from  its  intersection  with  the  Troy  and 
"  Greenfield  Railroad  on  the  east  to  the  point  of  intersection 


10 


"with  the  Troy  and  Boston  Railroad  on  the  west,  together 
"with  all  the  lands,  depot-houses,  water-tanks  or  other 
"  structures,  belonging  or  that  may  hereafter  belong  to  said 
"corporation,  the  party  of  the  first  part." . 

"  And  the  said  Trby  and  Boston  Railroad  Company,  upon 
"  the  completion  of  said  Southern  Vermont  Railroad  and  its 
"acceptance,  for  its  part  agrees  and  binds  itself  as  follows, 
"namely:  That  it  will  payor  cause  to  be  paid  to  the  said  v 

"Southern  Vermont  Railroad  Company  for  the  use  of  said 
"railroad  and  fixtures,  the  sum  of  $12,000  per  annum,  as 
"  follows  :  At  the  Bank  of  Commerce,  New  York  City,  the 
"  interest  coupons  on  such  bonds  as  the  Southern  Vermont 
"Railroad  Company  shall  issue  in  payment  for  construction 
"of  said  road,  which  sum  shall  not  exceed  $150,000,  at  an 
"  interest  not  to  exceed  six  per  cent  per  annum,  the  principal 
"  payable  in  not  less  than  twenty  years  from  the  first  day  of 
"  May  next.  The  balance  of  the  $12,000  payable  semi- 
"  annually  at  their  office  in  the  city  of  Troy.” 

Indorsed  upon  the  foregoing  instrument  is  a  certificate  by 
Judge  Gould,  that  on  the  27th  of  April,  1870,  D.  Thomas 
Vail  (president  of  the  Troy  and  Boston  Railroad  Company) 
made  affidavit  before  him  to  the  effect  that  said  instrument 
was  duly  executed,  —  "all  which  is  to  me  satisfactory  evi- 
"  deuce  of  said  facts,  and  the  instrument  is  authorized  to 
"  be  recorded." 

The  said  instrument  or  lease  had  been  already  recorded 
March  10,  1858,  as  appears  by  the  proper  certificate  indorsed 
upon  it ;  and  the  certificate  of  J  udge  Gould  was  also  recorded 
April  27,  1860. 

8.  Agreement  between  the  Southern  Vermont  Railroad 
Company  and  the  Troy  and  Boston  Railroad  Company,  dated 
and  recorded  April  27,  i860,  identilying  the  bonds  referred 
to  in  the  foregoing  lease. 

This  agreement  in  substance  recites  the  former  letting  of 
the  Southern  Vermont  Railroad  to  the  Troy  and  Boston  Rail¬ 
road,  and  that  the  lease  was  executed  in  separate  parts,  one 
of  which  parts  was  dated  Nov.  21,  1856,  and  the  other  Jan. 


11 


9,  1857,  and  that  there  was  a  discrepancy  between  these  two 
parts  in  the  times  to  be  fixed  for  the  maturity  of  the  bonds 
of  the  Southern  Vermont  Railroad,  and  that  the  bonds,  as 
actually  made  and  issued,  were  payable  at  a  certain  date 
\  named,  and  accordingly  the  parties  mutually  acknowledge 

and  agree  that  the  bonds,  as  actually  made  and  issued,  are 
the  bonds  intended  to  be  provided  for  in  and  by  the  provisions 
f  of  said  lease. 

4.  Mortgage  by  the  Troy  and  Greenfield  Railroad  Com¬ 
pany,  of  the  Southern  Vermont  Railroad,  to  the  Common¬ 
wealth,  dated  and  recorded  April  21,  I860. 

This  mortgage,  after  referring  to  the  St.  of  1860,  grants 
to  the  Commonwealth  the  railroad  and  property  of  the 
Southern  Vermont  Railroad  Company,  "  including  the  lease 
"  made  by  the  said  Southern  Vermont  Railroad  Company 
"  to  the  Troy  and  Boston  Railroad  Company ,  dated  the  twenty - 
" first  day  of  November,  in  the  year  1856,  one  part  of  which, 
"  held  by  the  grantor  corporation,  is  hereto  annexed,  and  all 
"the  income,  benefits  and  reversion  thereof,”  and  referring 
to  the  deed  of  the  Southern  Vermont  Railroad  Company  of 
the  same  date  as  "  hereto  annexed  and  made  part  hereof 

[The  above  four  papers  are  all  printed  in  full  in  Senate 
Doc.  of  1874,  No.  150,  pp.  105-108,  100-103,  103-105, 
108-111.] 

It  thus  appears  that  the  Commonwealth,  in  acquiring  its 
interest  in  the  Southern  Vermont  Railroad,  was  dealing  only 
with  the  Troy  and  Greenfield  Railroad  Company,  a*nd  not  with 
the  Troy  and  Boston  Railroad  Company  ;  that,  in  the  whole 
transaction,  the  Legislature,  the  attorney-general,  and  the 
governor  and  council  had  always  in  mind  the  lease  to  .the 
Troy  and  Boston  Railroad  Company,  and  relied  upon  the 
promise  of  the  Troy  and  Boston  Railroad  Company  to  pay 
rent  of  $12,000  a  year,  as  the  chief  security  to  the  Common¬ 
wealth  ;  and  that  the  Commonwealth’s  title  was  in  express 
terms  made  subject  to  that  lease,  a  copy  of  which  was  made 


12 


a  paft  of  the  very  conveyance  under  which  the  Common¬ 
wealth  holds. 

This  has  been  well  understood  and  acted  on  by  all  public 
officers  and  legislative  committees  of  the  Commonwealth  from 
the  beginning,  as  appears  by  the  following  documents  :  — 

A  petition  of  the  Troy  and  Greenfield  Railroad  Company 
to  the. General  Court  in  January,  1857  (House  Doc.  of  1857, 
No.  18$  p.  2),  sets  forth  that  "the  Southern  Vermont  Rail- 
"road  is  under  contract  and  to  be  fully  completed  by  Sep¬ 
tember  first  next,  and  is  also  leased  to  the  Troy  and  Boston 
"  Baiload  Company .” 

A  report  of  the  attorney-general  of  the  Commonwealth 
(Hon.  Dwight  Foster),  dated  April  15,  18G2  (Senate  Doc. 
of  1862,  No.  157),  says  as  follows:  — 

"  The  result  of  the  accompanying  conveyances  and  statutes 
"relative  to  the  Southern  Vermont  Railroad,  is  to  give  the 
"  Commonwealth  security  upon  the  lease  by  the  /Southern 
"  Vermont  Railroad  Company  to  the  Troy  and  Boston  Bail - 
" road  Company  ( which  reserves  an  annual  rent  of  $12,000) 
"for  the  loan  of  $200,000  under  Section  8,  Chapter  202,  Acts 
"of  1860,  and  also  for  the  entire  $2,000,000  loan;  and  fur- 
"ther,  to  transfer,  subject  to  said  lease ,  the  franchise  and 
"  property  of  said  railroad  to  the  Troy  and  Greenfield  Rail- 
"  road  Company,  and  to  make  the  latter  company  a  corpora¬ 
tion  in  Vermont  as  well  as  in  Massachusetts, and  to  mort- 
"gage  the  property  thus  transferred  to  the  Commonwealth, 
"so  that  it  becomes  security  for  the  same  loans  in  the  event 
"  of  a  forfeiture  of  the  lease.” 

The  report  of  the  Hoosac  Tunnel  Commissioners  in  1869, 
Alvah  Crocker,  Tappan  Wentworth  and  S.  W.  Bowerman 
[House  Doc.  of  1869,  No.  192;  reprinted  in  Senate  Doc. 
of  1874,  No.  150]  contains  the  following:  — 

"Previous  to  the  purchase  of  the  Southern  Vermont  RaiJ- 
"road  by  the  Troy  and  Greenfield  Railroad  Company, 
"  the  corporation  owning  the  former  road  had  by  a  lease, 


13 


''dated  Nov.  21,  1856,  and  which  was  probably  executed 
"Jan.  8,  185/5,  conveyed  its  road ,  ivith  all  the  lands ,  depot- 
chouses,  water-tanks ,  or  o£/*er  structures  belonging ,  or 
c  may  hereafter  belong,  to  the  party  of  the  first  part 
"for  a  term  coextensive  with  the  duration  of  its  charter  and 
"  any  renewal  of  the  same  to  the  Troy  and  Boston  Railroad 
" Company,  a  corporation  established  in  New  York,  and  own- 
"  ing  a  railroad  now  running  from  the  city  of  Troy  to  a 
"  point  connecting  with  the  location  of  the  Southern  Vermont 
"Railroad.”  Pages  37,  38. 

The  report  then  goes  on  to  give  certain  particulars  of  the 
lease,  and  especially  as  to  the  annual  rent  of  $12,000. 

The  report  of  the  Joint  Standing  Committee  of  the  Legis¬ 
lature  for  1872  (Senate  Doc.  of  1873,  No.  201)  says:  — 

"  Southern  Vermont  Railroad.  This  line  of  six  miles  of 
"railroad,  following  in  its  route  the  valley  of  the  Hoosic 
"  River,  extends  in  a  northwesterly  direction  across  the 
"southwestern  corner  of  Vermont,  to  a  junction  with  the 
"Troy  and  Boston  Railroad  at  the  eastern  line  of  the  State 
"of  New  York.  The  title  vests  in  the  Commonwealth,  but 
"  the  immediate  interest  of  the  Hate  is  now  confined  to  the 
"  receipt  of  an  annual  rented  for  its  use  from  the  Troy  and 
"  Boston  Railroad  Company,  which  holds  it  under  the  per- 
" petual  lease  that  was  obtained  from  the  Southern  Vermont 
"  Railroad  Company,  before  the  sale  by  that  corporation  of 
"  the  ownership  of  its  railroad  to  the  Troy  and  Greenfield 
"  Railroad  Company,  through  whom  the  State  has  subse - 
"  quently  obtained  its  title.  We  have  mentioned  this,  because 
"  of  its  being  one  of  the  adjacent  railroad  interests  of  the 
"  Commonwealth  to  which  we  deem  it  appropriate  for  us  to 
"  make  reference  ;  but  in  all  considerations  as  to  railway  cou- 
"nection,  it  may  practically  be  deemed  a  part  of  the  Troy 
"and  Boston  Railroad,  inasmuch  as  this  company  holds  the 
"  unlimited  power  of  its  management  and  control.” 

The  report  of  the  corporators,  ex-Gov,  William  B. 


14 


Washburn  and  others,  in  1875,  contains  a  legal  opinion  by 
James  C.  Davis,  Esq.,  dated  Dec.  31,  1874,  as  to  the  title 
of  the  Commonwealth  in  the  Tunnel  line,  which  is  as  follows, 
concerning  the  Southern  Vermont  Railroad  :  — 

"The  Southern  Vermont  Railroad  Company  was  incorpo- 
"  rated  under  the  laws  of  the  State  of  Vermont. 

"  This  road  is  owned  by  the  Commonwealth,  under  fore- 
"  closure  of  a  mortgage  given  by  the  Troy  and  Greenfield 
"Railroad  Company.  It  is  subject  to  a  perpetual  lease  to  the 
"  Troy  and  Boston  JRailroad  Company  and  is  operated  by  this 
" company ,  which  pays  for  it  an  annual  rental  of  $12,000. 
"No  right  has  been  reserved  to  the  Commonwealth  to  take 
"possession  of  this  road,  except  in  the  event  of  the  failure  of 
"the  lessees  to  pay  the  rent,  and  as  it  lies  wholly  without  the 
"jurisdiction  of  the  Commonwealth  it  cannot  be  taken  under 
"  the  right  of  eminent  domain.” 

The  Commonwealth  took  its  title  to  the  Southern  Vermont 
Railroad  in  express  subordination  to  the  vested  rights  of  the 
Troy  and  Boston  Railroad  Company  under  the  lease  ;  it  has 
always  recognized  the  same,  and  regularly  collects  the  rent 
of  $12,000  a  year,  which  is  due  under  the  lease.  Will  it 
now  attempt  to  interfere  with  those  vested  rights  ?  To  call 
upon  that  company  to  surrender  and  cancel  its  lease,  under 
threat  of  entering  upon  its  leased  property  and  building  an¬ 
other  railroad  there,  would  be  virtually  an  attempt  at  confis¬ 
cation  ;  which  cannot  be  carried  out  under  the  laws  of  the 
land. 


THE  TROY  AND  BOSTON  R.  R.  CO., 

By  Chakles  Allen, 

its  Attorney. 


* 


